The anti-LGBTQ legal group Alliance Defending Freedom has asked the Supreme Court to strike down a Pennsylvania school district’s transgender-inclusive restroom policy.
ADF, representing several students in the Boyertown Area School District, says the students’ right to privacy was violated by the policy of allowing transgender students to use the restrooms and locker rooms consistent with their gender identity. This argument has already been “rebuffed by a trial court in Pennsylvania and the U.S. Third Circuit Court of Appeals,” the Washington Blade notes.
In its petition for a Supreme Court hearing, filed Monday, ADF contends that the policy violates Title IX of the Education Amendments of 1972, a federal law banning sex discrimination in education. Title IX has been used more commonly as a basis for transgender inclusion; several courts have held that anti-trans discrimination is sex discrimination, and President Barack Obama’s administration took this position as well. But ADF says the policy discriminates against students who are uncomfortable with a member of the “opposite” sex in restrooms and locker rooms.
“The claim is based on petitioners’ own sex, which dictates whom they consent to be with when undressing in a school privacy facility,” the petition says. “And the claim is based on sex in a more general way because the school’s permission to use a locker room or restroom depends on the sex designation of that facility. Either way, the claim falls within Title IX’s plain language, contrary to the Third Circuit’s conclusion.”
Whether the Supreme Court will agree to hear the case remains to be seen. It had planned to hear Virginia trans student Gavin Grimm's suit involving restroom access at his school in 2017, but decided not to when Donald Trump's administration rejected the Obama-era interpretation of Title IX, which had been part of the basis for an appeals court ruling in Grimm's favor.
Other cases involving LGBTQ rights are pending before the high court as well. ADF has asked the court to hear a case in which a federal appeals court ruled that a Michigan funeral home operator illegally discriminated against an employee by firing her because she is transgender. The Department of Justice has already filed a brief with the Supreme Court supporting the right to discriminate.
Another right-wing legal group, First Liberty, is petitioning the court on behalf of Aaron and Melissa Klein of Sweet Cakes by Melissa, who refused to make a wedding cake for a same-sex couple. The state of Oregon found they violated the state’s antidiscrimination law, and courts agreed. But the Kleins want the Supreme Court to rule that they have a First Amendment right to reject customers to whom they have religious objections. This would go further than the high court’s ruling in the Masterpiece Cakeshop case, which vacated a Colorado Civil Rights Commission ruling that the baker had violated state law by refusing a wedding cake to a same-sex couple, but did not establish a right to discriminate.
If the high court decides to hear any of these cases, it will be with a majority of conservative justices, given Brett Kavanaugh’s recent confirmation as the successor to Anthony Kennedy, a swing justice who championed LGBTQ rights.
In the Pennsylvania case, the American Civil Liberties Union has intervened on behalf of Aidan DeStefano, a transgender student at Boyertown Area Senior High, and the Pennsylvania Youth Congress, a group of LGBTQ youth organizations, including the Boyertown Gay-Straight Alliance.
Ria Tabacco Mar, senior staff attorney for the ACLU, told the Blade that ADF’s arguments are “offensive and not supported by the evidence in Boyertown or schools around the country.” The petition, she added, is “part of a larger pattern of attacks against the transgender community, including from the Trump administration.”